What is sexual assault? How is it defined?
Sexual assault is defined as a type of assault that violated the sexual integrity of the victim as it occurred in circumstances that are of a sexual nature.
When can an assault be considered ‘sexual in nature?
The court looks at several factors to determine if an assault is sexual in nature. These factors include:
- The nature of the contact
- Gestures or words accompanying the contact (including threats)
- The part of the body that is being touched
- The intent or purpose of the accused
- The presence or absence of sexual gratification
Know that sexual gratification and sexuality are not required in cases of sexual assault. More so, the intent of the accused is just one of the factors considered to determine if the accused’s conduct occurred within a sexual context.
What is the definition of sexual assault according to the Criminal Code of Canada?
Sexual assault is defined and outlined in Section 265 of the Criminal Code of Canada which also defines offences of assault.
A person engages in assault when:
- He applies intentional force to another person directly or indirectly without the consent of that other person.
- He threatens or attempts via an act or a gesture to apply force to another person or makes the other person believe that he got the ability to do so.
- He impedes or accosts another person or begs while openly carrying or wearing a weapon or an imitation of a weapon.
The following section applies to all forms of assault including aggravated sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, and sexual assault that occurred where the complainant submits or does not resist due to:
- Being subjected to force or seeing someone else forced.
- Fear of threats or fear of the application of force towards the complainant or to someone else
- Fraud or deception
- The exercise of authority
In situations where the accused claims that he believes that the complainant consented to the act named in the charge, a judge can instruct the jury to consider the absence or presence of reasonable grounds for that belief when reviewing the evidence that can prove that defence. There has to be sufficient evidence reviewed by the judge and jury that the accused has reason to believe that consent was given.
Is It advised to speak with the police regarding an alleged sexual assault?
Before talking to the police about an allegation of sexual offence or complaint, make sure that you consult with a criminal defence lawyer even when you are innocent. The last thing you want is to make one small mistake that can be used against you as evidence for a possible case. You must make sure that you are aware of your rights and responsibilities to avoid making a mistake that can jeopardize for defence.
Know that anything you say to the police can be documented and used against you in court. Once the police received a complaint of sexual assault, the circumstances are regarded as a criminal offence and criminal charges will soon follow.
What is the age of consent in Canada?
The age of consent in Canada is 16 years old as set out in the Criminal Code. Once someone reaches the age of consent, that individual can legally consent to engage in a sexual act with another individual.
For individuals who are 12 or 13 years old, they are able to consent legally to another individual who is less than two years older provided that:
For individuals who are 14 or 15 years old, they are able to consent legally to another individual who is less than five years older provided that:
- The other individual is not someone with whom the 14 or 15 year old is a relationship of dependency
- The other individual is not in a position of authority or trust with the 14 or 15 year old
- The relationship between the 14 or 15 year old towards the other individual is not exploitative of the 14 or 15 year old
- If a 14 or 15 year old is married, they can consent to engage in a sexual act with their husband or wife
For individuals who are under 16 years of age having none of the exceptions above applying to them, consent given by the underage individuals to engage in sexual contact or sexual touching is not valid as a defence to a sexual assault charge.
For instance, if a 14 year old agreed to have sex with a 20 year old, the consent is considered invalid, making the 20 year old guilty of sexual assault. A possible exception is that if the 20 year old took reasonable steps to verify the 14 year old’s age and truly believed that the 14 year old is at least 16 when sexual contact was made.
What is the prosecutor required to prove in a case of sexual assault?
The prosecutor needs to establish that sexual assault occurred with the use of 3 elements:
- Absence of consent
- Contact of a sexual nature
- Intentional touching
Was there consent?
The main issue in most sexual assault cases is to determine if the acts involved in the case are consensual between the two parties provided both individuals are over the age of consent. It has to be a voluntary agreement to be considered consent.
When is it considered that a sexual act happened without consent?
Consent is absent in the following situations:
- When the agreement to the act whether in conduct or words was given by someone else besides the complainant
- If the complainant cannot consent due to the complainant’s mental status such as when intoxicated or when mentally ill.
- When the accused causes the complainant to agree to the activity by abusing a position of authority, power, or trust.
- If the complainant does not agree to engage in the activity whether via conduct or words.
- When the complainant expresses not wanting to continue with the act either via words or conduct after the initial agreement
- If the complainant is under 16 years of age which is the age of consent in Canada.
Can someone have a mistaken belief in consent for sexual activity?
If the accused honestly believed that consent was given for a sexual act, the accused can be found not guilty of sexual abuse even if that belief was a mistake.
Mistaken belief in consent for sexual activity can be used as defence when the accused can establish that there is a reasonable reason to have an honest but mistaken belief that consent was given by the complainant via the complainant’s words or actions.
An honest but mistaken belief is not applicable in the following scenarios:
- When there is willful blindness or recklessness
- When there is self-induced intoxication
- When the accused did not take reasonable steps to ensure that the complainant was consenting considering the circumstances known to the accused when the assault occurred.
Was consent given?
The Court will look into the involved individuals’ conduct and words as well as steps taken by the accused to make sure that there is consent, to determine if consent was given. Details like actions and words are important when establishing if consent was given by the complainant. Silence or passivity by the complainant is not recognized by the Court as consent. Implied consent is not a valid defence for sexual assault even when the accused believes that passivity, silence, or ambiguous actions from the complainant means consent.
With the above said, each parties’ perception can be very different, hence, consent can be a grey area. The Court will consider consent from the complainant’s perception.
The Court needs to find out if the accused believed that consent was given and if the accused believed that the complainant said yes via actions and/or words.
If the complainant expressed not wanting to continue with the sexual contact, the accused has to make sure if consent was truly taken back or not before proceeding with any further sexual contact. The accused cannot use the complainant’s silence or passivity as reasons to continue or test if continuing is acceptable.
Continuing sexual contact after a party said “no” is considered as reckless conduct that can lead to a conviction for sexual assault.
More so, the accused is required by the Criminal Code to prove that reasonable steps were taken by the accused to make sure that consent was given. What is important to the court is that sufficient efforts were made by the accused to ascertain that consent was indeed given.
Because the definition of consent that is used for sexual assault requires that active consent was given by the complainant for each phase of the sexual activity, someone who is unconscious cannot technically give consent even if consent was given in advance. All sexual acts wherein one party was not capable of actively consenting are not consensual in the eyes of the Criminal Code.
Are there limitations about attacking a complainant’s credibility in a sexual assault case?
It is no longer allowed to bring up a complainant’s past sexual history during questioning for a sexual assault case to attack the complainant’s credibility.
If the accused wants to ask questions about a complainant’s past sexual history whether, with the accused or other individuals, a special application must be sent to the trial judge before questioning can start.
The Court may allow the questioning if it is relevant to the case and carries a significant probative value but note that the questioning cannot be used to suggest that the complainant is less worthy of belief or to insinuate that the complainant consented all along. Questioning that is not relevant is not allowed in Court.
What other types of sexual offences are stated in the Criminal Code of Canada other than sexual assault?
Other sexual offences that are in the Criminal Code other than sexual assault are:
- Child Luring in Criminal Code section 172.1
- Child Pornography in Criminal Code section 163.1
- Incest and Bestiality in the Criminal Code sections 155 and 160
- Indecent Acts in Criminal Code section 173
- Sexual Exploitation of a Minor or a Person with a Disability in the Criminal Code sections 153 and 153.1
- Sexual Interference & Invitation to Sexual Touching in the Criminal Code sections 151 and 152
- Voyeurism in Criminal Code section 162
The majority of these sexual offences come with mandatory listing of the convicted individual on the Sex Offenders Registry and mandatory minimum jail sentences after conviction.
What is the typical sentence or punishment for cases of sexual assault?
Someone found guilty of sexual assault could face no jail time up to 18 months or 10 years in jail based on whether the Crown proceeds with an indictment or a summary conviction. This is based on the Crown attorney’s decision as there are pros and cons that can be considered for an indictment or a summary conviction.
The appropriate punishment is assessed carefully for fairness and justice since an allegation of sexual assault can range from groping someone up to forcing sexual intercourse. The judge will consider various factors prior to sentencing to come up with an appropriate punishment. These factors may include:
- The offender’s criminal record
- The offender’s personal circumstances
- The brutality of the assault or the lack of brutality during the assault.
Each case is weighed carefully and treated as unique.
A conviction for sexual assault means facing the stigma of being placed on the provincial and the national database of sex offenders for a minimum period of 10 years. This record may also exist for as long as the registry exists. The accused is also placed under the strict supervision of the police for a certain span of time after conviction.
What is the Sex Offenders Registry?
The Sex Offenders Registry is a record that was established by the Canadian government to track and monitor individuals who have been convicted of sexual offences.
The details in the Sex Offenders Registry, such as the names and addresses of person listed therein, are not available to the public as the Sex Offenders Registry is not public information. The information in the registry is used by certain organizations and by police officers to investigate sexual offences and track offenders.
A person on the Sex Offenders Registry is required by the SOIRA (Sex Offender Information Registration Act) to register every year and to give police certain information such as where they are employed, their address, if they are volunteering and where, if they are going to school, and their plate numbers or license numbers plus the descriptions of their vehicles. They must also inform the police if they are going to be away from their registered residence for more than 7 days.
Who is listed in the Sex Offender Registry?
Individuals convicted of some sex offences are required by the judge to be listed to the Sex Offenders Registry. For some offences, the prosecutor has to ask the judge to issue an order for a person to be listed in the registry and in some instances, it is mandatory. Mandatory listing in the Sex Offenders Registry is required for individuals convicted of child pornography, sexual interference, and sexual assault. Know that orders for getting listed in the Sex Offenders Registry last for a minimum of 10 years and can last for a lifetime based on circumstances.
If you know someone who is facing a charge of sexual assault, be sure to contact a criminal defence lawyer as soon as possible to mitigate the possible issues that can arise during the defence. The earlier that a strategy is discussed with an experienced criminal defence lawyer, the more successful the defence strategy for sexual assault can be to achieve a favourable outcome. Contact Toronto criminal defence lawyer Calvin Barry.